Unsuccessful constitutional complaint against the refusal to postpone the execution of a prison sentencePress Release No. 115/2017

In an order published today, the Third Chamber of the Second Senate did not admit for decision a constitutional complaint challenging the refusal to postpone the execution of a prison sentence. The 96-year-old complainant has been convicted of aiding and abetting murder in 300.000 legally connected cases, and sentenced to four years in prison by way of final judgment. With his constitutional complaints, he primarily claims that the challenged decisions do not sufficiently take his state of health into consideration and that his fundamental right to life and physical integrity (Art. 2(2) first sentence of the Basic Law, Grundgesetz – GG) has been violated.

Facts of the case:

By way of final judgment, the Lüneburg Regional Court (Landgericht) sentenced the complainant, who was born in 1921, to four years in prison for aiding and abetting murder in 300.000 legally connected cases. The complainant applied for postponement of execution of his sentence based on substantial health impairments (§ 455(3) of the Code of Criminal Procedure, Strafprozessordnung – StPO). Upon receiving the report of the official medical officer as well as an additional psychiatric assessment, the public prosecution office dismissed the application. The Regional Court rejected the application for judicial decision directed against the decision of the public prosecution office; the immediate complaint to the Higher Regional Court (Oberlandesgericht) was also unsuccessful. With his constitutional complaint, the complainant claims a violation of his fundamental right to life and physical integrity (Art. 2(2) first sentence GG).

Key considerations of the Chamber:

1. The state’s duty to protect the security of the public and confidence in the proper functioning of state institutions generally requires that the state’s right to punish crimes be enforced. In the event of impending health risks for the convicted person, however, the obligation to enforce the state’s right to punish comes into conflict with the convicted person’s fundamental right under Art. 2(2) first sentence in conjunction with Art. 1(1) GG. Therefore, the conflicting interests must be balanced in accordance with the principle of proportionality. Thus, not even very old age of the convicted precludes the execution of a prison sentence. In light of the requirement that prison sentences be executed humanely convicted persons must, in principle, be given a realistic prospect of regaining freedom even if their guilt was found to be particularly serious. In the event that convicted persons face an imminent danger to life or serious threats to their health, the sentence may not be executed. Contrastingly, it is not necessary to defer the state’s right to punish crimes if sufficient means are available to ensure proper medical care and avert acute health risks. In that respect, it is an essential requirement of proceedings in accordance with the rule of law that decisions concerning the deprivation of liberty be based on sufficient judicial investigation of the circumstances of the case and have a sufficient factual basis commensurate with the significance of the constitutional guarantee of liberty.

2. The challenged decisions satisfy these standards.

a) On the basis of the medical reports and expert opinions, the public prosecution office and the regular courts were in the position to determine, without further investigation, the complainant’s state of health and then balance the state’s obligation to enforce its right to punish against the fundamental rights of the complainant. It is not discernible that the challenged decisions are based on an insufficient investigation of facts.

b) In addition, it is not discernible that, when balancing the public interest in enforcing the state’s right to punish and the complainant’s fundamental rights, the challenged decisions disregarded the significance and scope of the complainant’s fundamental rights. It is unobjectionable under constitutional law to assume that the complainant’s old age as such is not a sufficient reason for deferring enforcement of the state’s right to punish. At the same time, it must be taken into account that the complainant has been found guilty of aiding and abetting murder in 300.000 legally connected cases. This lends particular importance to enforcing the state’s right to punish.

According to the findings of the regular courts, it also cannot be assumed that executing the sentence would be disproportionate for other reasons. On the basis of the expert opinions concerning the complainant’s state of health – and considering, in particular, the statutory possibilities to partly suspend the sentence under an operational period of probation – it is not apparent that serving a four-year prison term would deprive the complainant of the chance to regain freedom from the outset, or reduce his prospects to spending his remaining life in sickness and on the brink of death. The assessment of the public prosecution office and the regular courts that there were no serious threats to health or an imminent risk of death barring the execution of the complainant’s prison sentence under the principle of proportionality is also not objectionable under constitutional law. Rather, existing health impairments can be accommodated by providing the necessary medical care. If the complainant’s state of health were to considerably deteriorate in prison, the situation could be addressed by interrupting the execution of the sentence (§ 455(4) StPO).

Finally, it is unobjectionable under constitutional law that the public prosecution office and the regular courts found that, even with regard to the complainant’s existing psychological impairments, there was no imminent risk of death or serious threat to his health resulting from the execution of his sentence. The Higher Regional Court thoroughly examined the expert opinions and, ultimately, held that there was no strong probability of risk of death as a result of imprisonment, nor an imminent danger to life. This assessment is not objectionable under constitutional law, even if the conditions in prison differ from the complainant’s current social environment.